Humphrey, R v

A trial judge should leave an alternative verdict only where it is obviously raised by the evidence. Where no realistic alternative offence arises, a jury may properly be confined to the single count charged. A conviction is not unsafe merely because the jury reported difficulty in reaching unanimity and asked about offences not raised by the evidence. There must be a real basis for thinking that the jury disregarded clear directions or convicted from reluctance to acquit. A sentence for attempted robbery may properly reflect high culpability where an object is used to create the impression of a firearm, together with planning, disguise and other aggravating features.

The applicant was convicted at the Crown Court at Reading of attempted robbery and was sentenced to five years and six months’ imprisonment. His applications for leave to appeal against conviction and sentence were refused by the single judge and renewed before the full court.

At trial, the prosecution alleged that the applicant, disguised and carrying a folded umbrella so as to appear armed, threatened the public house manager in an attempt to obtain access to the safe. The defence denied any intention to steal. During deliberations the jury asked about robbery, burglary and aggravated burglary, but were correctly directed that only attempted robbery was charged.

The central issues were whether the jury note rendered the conviction unsafe and whether the sentence was manifestly excessive.

1. The renewed applications for leave to appeal were refused. The conviction application was unarguable, so no purpose would be served by extending time for it.
2. A judge should leave an alternative verdict where it is obviously raised by the evidence. Coutts [2006] 1 WLR 2154 stated that modern test. On either the prosecution or defence case, however, there was no realistic basis for attempted theft or another alternative offence. The judge was therefore entitled to leave the jury with guilty or not guilty of attempted robbery only.
3. The court treated the applicable approach in Maxwell (1990) 91 Cr.App.R 61 as requiring satisfaction that the jury may have convicted through reluctance to let the defendant escape the consequences of disgraceful conduct. The earlier Court of Appeal formulation in Maxwell (1989) 88 Cr.App.R 173 had not been approved by the House of Lords. In any event, the jury note supplied no foundation for suspecting a deliberate breach of the jurors’ oaths or disobedience to the judge’s clear directions. It is not unusual for a jury that initially reports difficulty to return a unanimous verdict, or to ask a legal question which does not arise on the evidence.
4. The sentencing judge was entitled to treat the offence as high culpability under the robbery guideline. The evidence allowed her to find that the complainant initially believed that the applicant was armed with a gun. The planning, use of inside knowledge and disguise were proper aggravating features. Although the applicant was of effective good character and the offence was an attempt, a sentence modestly above the five-year starting point was not manifestly excessive.

• Court of Appeal (Criminal Division) — renewed applications for leave to appeal against conviction and sentence refused: [2017] EWCA Crim 852.
• Crown Court at Reading — applicant convicted of attempted robbery on 22 August 2016 and sentenced to five years and six months’ imprisonment on 23 August 2016. Leave to appeal was subsequently refused by the single judge.